Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143) - Guinea (Ratification: 1978)

The Committee notes with regret that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee notes that the Government is still in the process of preparing a new Labour Code to update the 1988 Code, which it therefore requests the Government to keep the Office informed of progress in the draft revision of the Labour Code and to supply a copy of the text finally adopted.

Legislation. The Committee recalls that section 6 of the Labour Code currently in force provides that when an employer considers engaging a foreign worker he must obtain prior authorization from the National Employment and Manpower Office (ONEMO) in conditions laid down by decree or ministerial order. Since 1992 the Committee has been requesting copies of texts specifying the internal operating rules of ONEMO which the Government stated would shortly be adopted. The Committee notes that in 1997 ONEMO was replaced by the Guinean Agency for the Promotion of Employment (AGUIPE), with rather different attributions and structure. The Committee therefore asks the Government to supply a copy of Decree No. 97/285/PRG/SGG/97 of 24 December 1997 establishing AGUIPE, which is allegedly attached to the report but is not, as well as of any specific regulations governing recruitment of foreign workers. In regard to the implementing order of section 7 of the Labour Code, it notes that the Government affirms – once again – that this text will shortly be received by the ILO and trusts that it will be attached to the Government’s next report.

Articles 3 and 6 of the Convention. The Committee notes that the penalties incurred at present in the event of illegal immigration, as described by the Government, seem to be restricted to persons who employ workers who have immigrated illegally. The Committee notes, however, that section 131-4 of the draft revising the Labour Code extends penalties to the organizers of illegal or clandestine movements of migrants for employment on the territory of the Republic of Guinea, or from there, or transiting through the territory. The Committee draws attention to the fact that under Article 6(1) of the Convention, sanctions must also be defined for persons who provide knowing assistance to such movements, whether for profit or otherwise. The Committee hopes therefore that when section 131-4 is finally adopted it will define administrative, civil and penal sanctions in regard to the illegal employment of migrant workers, the organization of movements of migrants defined as involving abuses and in respect of knowing assistance to such movements in conditions violating the pertinent international, multilateral or bilateral instruments or agreements or national legislation.

Article 8. The Committee notes the Government’s statement to the effect that although loss of employment by a migrant worker indicates the termination of his employment contract, it does not automatically imply withdrawal of his authorization of residence or work permit under the terms of section 131-5 of the draft new Labour Code and, consequently, the guarantees of security of employment, the provision of alternative employment, relief work and retraining in accordance with Article 8 of the Convention. It notes, however, that if the worker finds employment that will generate higher costs for the employer concerned if he must choose between two applicants of equal competence of which one is Guinean. The Committee recalls that under Article 14(a) of the Convention this unequal treatment of migrant workers residing lawfully in the country of employment is contrary to the principle of equality of opportunity and treatment in access to employment and occupation enshrined in the Convention – if it extends beyond two years. The Committee would therefore be grateful if the Government would ensure that priority of employment in favour of Guinean workers, set down in draft section 131-5, does not exceed the two years prescribed in Article 14(a) of the Convention.

Article 10. Trade union rights. Still within the framework of the draft revision of the Labour Code, the Committee notes that draft section 321-4 provides for the lowering from five years to three years the obligation of residence for foreign workers to be allowed to accede to official trade union positions and even to abolish this obligation for nationals of countries that have concluded agreements stipulating reciprocity on this particular point or having national legislation authorizing access of all foreign workers, including Guineans, to official trade union positions. The Committee notes the progress which would be made by this draft section as compared with sections 242 and 251 of the current Labour Code, but highlights the fact that the principle laid down in Article 10 of the Convention is that of equality of treatment without conditions and that the provisions mentioned above are conditions of residence or reciprocity (see General Survey on migrant workers, 1999, paragraphs 109 and 440, on this subject). The Committee therefore expresses the hope that the Government will amend the content of draft section 321-4 of the Labour Code accordingly.

Finally, noting that the Government has supplied no information on measures taken to facilitate the reunification of the families of migrant workers (Article 13) or to make regulations concerning recognition of occupational qualifications acquired outside its territory or to restrict access to limited categories of employment or functions (Article 14), the Committee reiterates the wish that the Government’s next report will supply the information requested.